Washington D.C. Advertising Lawyer & Attorney : Kelley Drye & Warren Law Firm : New York, Chicago, Connecticut, New Jersey, Brussels

On May 12, 2008, the Federal Trade Commission (FTC) announced its approval of new rule provisions regulating email marketing practices under the CAN SPAM Act. These provisions will take effect on July 7, 2008.

The announcement of the new rule provisions were accompanied by the FTC’s Statement of Basis and Purpose, which set forth its thinking with respect to how the CAN SPAM Act applies to refer-a-friend emails and employer-to-employee emails.

This article describes each of the new rule provisions, and offers valuable insight on the likely impact of these requirements on email marketing practices. To view the full-text version of this article in PDF format, click here.

This article appeared in the July 2008 issue of Cyberspace Lawyer, Vol. 13 Issue 6.

Used with permission. © 2008 Thomson Reuters/West. All rights reserved.

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Dubbed “The Year of the Recall,” the startling increase in consumer product recalls in 2007 has guided sweeping Consumer Product Safety Commission (CPSC) reform legislation, which is in its final stages of approval. Consequently, companies are scrambling to improve compliance with product safety requirements and manage the financial effects of a recall or increased litigation.

As industry standards become increasingly stringent, companies should evaluate existing procedures to ensure compliance with consumer product safety requirements, and are further encouraged to stay aware of legislative developments in an effort to mitigate risk and monitor compliance.

This article examines the potential effects of the proposed legislative provisions on the scope of CPSC authority and offers practical pointers for navigating compliance issues affecting the consumer products industry in the United States.

To view the full-text version of this article in PDF format, click here.

This article appeared in the June 2008 issue of The Metropolitan Corporate Counsel, Vol. 16 No. 6.

Used with permission. © 2008 The Metropolitan Corporate Counsel, Inc. All rights reserved.

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You are an in-house attorney or outside counsel and your client brings a competitor’s advertising claim to your attention, convinced that it cannot be substantiated. You are asked to take action to prevent further damage to your client’s market position. But taking a stand does not and should not always mean taking your competitor to court. What are your options, and what factors will influence your recommended course of action?

Challenging a competitor’s advertising claims can mean anything from writing a letter to spending a year battling claims and counterclaims in court, with several additional options in between.
This article provides the practical guidance necessary to evaluate which option or options are best suited to serve your client’s needs and increase the likelihood of a successful challenge. By weighing the pros and cons of each method and staying up-to-date on relevant cases and trends, you will quickly transform any plan of attack from standard to strategic.

To view the full-text version of this article in PDF format, click here.

This article appeared in the June 2008 issue of Advertising Compliance Service, Vol. XXVIII Issue 12.

Used with permission. © Copyright 2008 JLCom Publishing Co., LLC. All rights reserved.

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Running promotions that involve consumer-generated content seems like a win-win. Users spend time engaging while creating the content and then, hey — free content. But the practice also poses challenges, because companies may be held liable for the actions of consumers, as well as their own actions. Because these promotions are relatively new, there are still a lot of legal uncertainties.

This article offers helpful tips to companies for reducing potential risk and responding promptly to complaints.

To view the full-text version of this article in PDF format, click here.

This article appeared in the May 2008 issue of OMMA Magazine.

Used with permission. All rights reserved.

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On December 20, 2007 the Federal Trade Commission (FTC) staff released for public comment proposed online behavioral-advertising privacy principles (Principles) in an effort to guide self-regulation of this nascent industry.

The release of these Principles followed a two-day Town Hall meeting held by the FTC late last year on behavioral advertising. Comments on the proposed Principles were initially due by February 22, but the deadline was extended to April 11.

The FTC staff’s Principles include specific recommendations and questions for industry regarding transparency and consumer control; data security and retention; privacy policy requirements; and treatment of sensitive data. These proposed Principles for the self-regulation of behavioral advertising carry important implications far beyond the online behavioral-advertising industry.

This article addresses the Principles suggested by the FTC and provides an analysis of their proposed application.

To view the full-text version of this article in PDF format, click here.

This article appeared in the March 2008 issue of LJN’s E-Commerce Law & Strategy, Vol. 24 No. 11.

Used with permission from the March 2008 edition of the LAW JOURNAL NEWSLETTERS – E-COMMERCE LAW & STRATEGY. © 2008 ALM Properties, Inc. All rights reserved.

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More and more companies are incorporating consumer-generated content into their promotions, and it can easily be a publicity boon — or a public-relations bust. As with any double-edged sword, treading carefully is the key to success.

In addition to the legal requirements that apply to promotions, there’s an inherent risk in putting so much power in the hands of consumers. The more control they have, the less control you have. Many promotions don’t run smoothly simply because sponsors fail to identify risks and plan accordingly.

This article outlines basic steps that sponsors can take to reduce their exposure to complaints and lawsuits involving these types of promotions.

To link to the full-text version of this article, click here.

This article was published by ADOTAS in March 2008.

Used with permission from ADOTAS. Copyright © 2005-08 Adotas.com. All rights reserved.

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The year 2007 continued a trend of many states enacting a wide range of privacy and data protection laws in the absence of a uniform federal law on this front.

State data breach notification laws require businesses to assess whether a potential data compromise qualifies as a “security breach” based on specific criteria, and to comply with notification obligations within a standard time period.

Because notification obligations only apply once a data breach has been incurred, a number of states have enacted broader forms of information safeguard laws requiring businesses to implement and maintain reasonable security procedures to protect personal information from unauthorized access, destruction, use, modification, or disclosure.

With similar legislation pending in several states, we are likely to see a growing number of these laws enacted in 2008. This article provides an analysis of the key state laws enacted to date that regulate how businesses handle personal information.

To view the full-text version of this article in PDF format, click here.

This article originally appeared in The Privacy Tracker, a publication of the International Association of Privacy Professions (IAPP). If you are interested in joining the IAPP and subscribing to the Privacy Tracker please visit www.privacyassociation.org.

Used with permission. Copyright © 2008 International Association of Privacy Professionals. All rights reserved. 

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On November 1-2, 2007, the Federal Trade Commission (FTC) held a Town Hall meeting on Behavioral Targeting in Washington, DC. The discussion featured three key issues: the proposed “Do Not Track List”; the Network Advertising Initiative’s Principles for Online Preference Marketing; and the level of appropriateness of various options regarding notice, consumer control, and government-issued requirements for regulating behavioral targeting.

This article summarizes the primary issues addressed at the FTC’s Town Hall meeting and provides detailed coverage of the two-day event, with an overview of the panels and the key points from each session.

To view the full-text version of this article in PDF format, click here.

This article appeared in the December 2007 issue of Privacy & Data Security Law Journal, Vol. 3 No. 1.

Used with permission. Copyright ALEXeSOUTIONS, INC. All rights reserved.

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The Federal Trade Commission (FTC) and the federal banking agencies have jointly issued final FACTA rules and guidelines governing obligations of financial institutions and creditors to develop and implement a comprehensive written program that prevents, detects, and mitigates identity theft; duties of card issuers regarding changes of address; and duties of users of consumer reports regarding address discrepancies.

If the FTC initiates an investigation into a company’s failure to comply with these rules and concludes that the company violated the rules, the company could be subject to injunctive relief, damages, and extensive civil penalties.

The final rules are effective on January 1, 2008, and financial institutions and creditors subject to the rules will have until November 1, 2008 to develop policies and procedures that comply with these requirements. It is likely that the FTC will initiate a compliance sweep shortly after the November 2008 compliance deadline.

This article offers a detailed analysis of each of these recently issued federal regulations.

To view the full-text version of this article in PDF format, click here.

This article appeared in the December 2007 issue of Privacy & Data Security Law Journal, Vol. 3 No. 1.

Used with permission. Copyright ALEXeSOUTIONS, INC. All rights reserved.

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As more consumers find dietary supplements to be an accepted alternative to conventional medicine, regulators and competitors continue to step up efforts to scrutinize claims and substantiation. The changing regulatory landscape continues to present challenges to marketers of dietary supplements, as federal, state and even local regulators continue to bring enforcement actions alleging that the companies’ marketing practices are deceptive or unfair.

In determining what advertising is permissible, marketers of dietary supplements are well-advised to consider not only FTC precedent and guidance but also NAD decisions on particular types of dietary supplement claims and advertising practices to avoid enforcement action.

This article briefly reviews the current regulatory framework for dietary supplement advertising, and provides analysis of specific dietary supplement claims that have garnered FTC and NAD scrutiny in recent years.

To view the full-text version of this article in PDF format, click here.

This article appeared in the December 2007 issue of the Food and Drug Law Journal, Vol. 62 No. 4.

Used with permission from FDLI. Copyright © 2008, The Food and Drug Law Institute. All rights reserved.

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In response to new privacy and data security laws and increased enforcement by both regulators and private parties over the last several years, many businesses either have or are in the process of implementing tighter controls to protect their customers’, employees’, and other third parties’ personal information that is stored, accessed, and shared by the business. Those measures could not come at a better time.

The Federal Trade Commission (FTC) has made clear its intent to hold businesses responsible for lax practices that put consumers at risk of identity theft, and has settled with 14 companies to date related to deceptive or unfair data security practices.

In addition to an FTC investigation, companies can be subject to investigations by state attorneys general who have shown a strong interest in using state consumer protection laws to rein in unfair or deceptive business practices that put consumers’ personal information at risk.

Finally, where there is regulatory interest, private litigation, particularly class action cases, are likely to follow — or, in some cases, start the trend.

This article offers businesses practical advice to follow in order to avoid becoming the subject of a regulator investigation, private litigation, public scrutiny, or all of the above.

To view the full-text version of this article in PDF format, click here.

This article appeared in the October 2007 issue of Privacy & Data Security Law Journal.

Used with permission. Copyright ALEXeSOUTIONS, INC. All rights reserved.

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